As we reported last week, a hearing was held on Friday, May 29 on the motion for appointment of a special prosecutor in Ferguson. After a contentious discussion the Judge Joseph L. Walsh III agreed to consider the expert affidavit of Prof. Bennett Gershman on the issue of prosecutorial misconduct in the grand jury.
Gershman complained about a “gross deviation from proper standards of conduct,” saying he never before saw prosecutors go to “extraordinary lengths to exonerate a potential defendant.”
This Friday, May 29, 2015, a hearing will be held in Missouri State Court in the matter of State of Missouri ex inf. Montague Simmons, et al., v. Robert McCulloch, St. Louis County Prosecuting Attorney, seeking appointment of a special prosecutor to investigate the St. Louis County Prosecutor’s conduct in the grand jury in State of Missouri v. Darren Wilson (previously discussed here). The Wilson matter arose from the death of Michael Brown. After a grand jury presentation, the grand jury failed to indict Officer Wilson in the death of Mr. Brown.
Missouri has an interesting statute, Missouri Revised Statutes §§ 106.220–106.290, that allows a private citizen to bring an action for an investigation to determine if a sitting prosecutor’s conduct constituted a failure to perform the duties of his public office. If so found, a special prosecutor would be appointed with authority to file a writ of quo warranto action seeking ouster of the sitting prosecutor from office.
The motion is supported by the affidavit of Prof. Bennett Gershman, from Pace Law School, who addresses the questions of serious misconduct in the presentation of the case to the grand jury.
The killing of Michael Brown in Ferguson, Missouri, has been in the media forefront since the tragic shooting in August 2014 but it gained new traction recently when the Ferguson Grand Jury decided not to indict police officer Darren Wilson. Traditionally, a grand jury hearing is a one-sided presentation of the facts and evidence by the prosecutor. Not here, however: District Attorney Robert McCulloch decided to let the grand jury hear all the evidence, including a narrative statement by the target. Why? Take a moment to explore this question and read Reflecting on the Ferguson Grand Jury by Joel Cohen & Bennett L. Gershman.
The central irony in this case is that the familiar abuses in the grand jury process typically occur when prosecutors refuse to present all of the evidence and, indeed, hide evidence that might have led a grand jury to refuse to indict – to vote a “no true bill.” What is particularly odd about the Ferguson Grand Jury presentation is the complaint that by his decision to present all of the evidence, McCulloch actually dis-served the prosecution. Why did McCulloch take these steps? We do not know, and we are likely never to know.